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Noah Feldman
Cosmopolitan Law?
Introduction
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i. What is Cosmopolitanism?
A. Political Theory and the Citizen of the World
B. Prelude to Complex Cosmopolitanism
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101
101
ii. Morals beyond Borders
A. What’s Wrong with the Social Contract?
B. The Social Contract and the State
C. Law and the Consequences of Capabilities
101
101
101
101
iii. Ethics and Others
A. The Cosmopolitan Self
B. Neutrality, Cosmopolitanism, and Coercion
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101
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iv. Cosmopolitan Law
A. The Political Conception of Legal Duty
B. Cosmopolitan Legal Duty
1. Nature’s Option
2. The Moral Argument for Universal Jurisdiction
3. Minimalist Legal Cosmopolitanism
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Conclusion
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Introduction
We have ethical and moral responsibilities to citizens of other
countries who live far away and whose lives barely interact with ours.
But do we have legal duties to those people? Do we have legal duties,
that is, to people who do not belong to any institutional regime to which
we belong, and whose governments have not entered into binding legal
arrangements with us? If so, are the duties reciprocal? Can we also make
legal demands and impose legal liabilities on people who have never
agreed, directly or indirectly, to enter into legal privity with us, and who
might not agree to do so even if they were asked?
These questions are of the utmost practical importance. In one form
or another, they have haunted several of the most important decisions to
face our courts and our government in recent years. What legal duties
have we toward persons captured outside the United States—in
Afghanistan and elsewhere—and then held outside the United States—
in Guantánamo and beyond?1 Are there some people in some places
whose treatment falls entirely outside any legal order or regime?2
Reciprocally, what kinds of legal claims—if any—are cognizable in
U.S. courts regarding events that took place outside the United States,
and may not even have involved any U.S. citizens?3
Within the U.S. Government, answers to these pressing questions
have been proffered by courts striving to determine and specify the law
of the United States; by government officials seeking to guide the
executive branch by predicting what courts might do in future cases;4
and by legislators considering the best way to design U.S. law to accord
with American values and interests. These government actors have
tackled the issues from different perspectives corresponding to their
different institutional roles. Although they have not always
acknowledged it, each of their inquiries implicates a fundamental
problem in legal theory: What justifies extending legal duties and
demands outside the bonds of citizenship or the ambit of treaties?
In what follows, I set out to investigate the problem of the
justifiability of legal duties that apply beyond the reach of familiar legal
institutions like states and the treaty regimes states enter. To do so I
want to draw on the difficult, contested, but nonetheless important
concept of cosmopolitanism. In particular, I will consider two recent,
powerful attempts—by Martha Nussbaum5 and Kwame Anthony
Appiah6—to make cosmopolitanism useful for political theory, and will
reflect on the legal implications of these undertakings. First, though, I
want to consider briefly what is meant by cosmopolitanism itself; then,
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after considering Nussbaum’s and Appiah’s arguments, to offer my own
views on cosmopolitanism and law.
i. What is Cosmopolitanism?
A. Political Theory and the Citizen of the World
In ordinary English language usage today, a cosmopolitan is the kind
of person who knows the good tapas bars in Barcelona, how to meet a
graphic artist in Osaka, and where to find the most interesting khatfueled salon conversation in Aden.7 A cosmopolitan judge (the standard
is lower) might be one who wears English suits, speaks French or
Swedish, and is not averse to citing international legal materials he or
she picked up while summering in Salzburg with judges from other
countries. “Cosmopolitan” is, of course, also the name of a mid-market
women’s magazine and, more tellingly, of a pinkish vodka drink (now
thankfully passé) that somehow was thought to capture the glamour of
the pre-9/11 cultural moment in New York.
The evident triviality of these contemporary uses of the term bears
some consideration in the light of its historical origins. Its inventor
seems to have been Diogenes the Cynic (d. 323 B.C.E.), who, when
asked where he came from, replied, “I am a citizen of the world
[kosmopolites].”8 Diogenes was himself an exile from his native
Sinope.9 Like his contemporary Aristotle, though unlike Socrates and
Plato, he was a stranger in Athens, not a citizen. His answer, then,
captured both his own sense of unrootedness and also a more profound
suggestion about the pointlessness of citizenship. To be a citizen of the
world, Diogenes implied, is to feel at once common affective bonds with
the whole world and—in the absence of any imaginable world state—to
acknowledge political bonds with no one at all.
Like most comments attributed to Diogenes, we have this cryptic
statement only by second-hand report and without much context. But it
is fair to say that, as in many of his recorded comments, Diogenes
intended some complicated combination of superficial parody and
foundational depth. His suggestion would have been deeply subversive
of contemporary Greek ideals of the virtue of participatory citizenship.10
Indeed, Diogenes’s whole career may be read as a sort of critical sendup of the familiar Athenian virtues of action and contemplation. Asked
what sort of a man he considered himself to be, he replied, “A Socrates
gone mad.”11
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Diogenes, then, was not a theorist of the polis, but a gadfly. His
coinage was meant to call into question the centrality of political
allegiance as a category of self-construction. So it is intriguing that
today, political theorists in particular use the term “cosmopolitan” in a
serious, distinctive, and developed way.
It was not always thus. As its name implies, political theory is
primarily directed toward the relations formed within and around the
polis. The polis has been, in its day, a city, a kingdom, and even, for
some theorists, a religious community like Augustine’s City of God12 or
the umma of the Muslims.13 In the modern era, however, the polis par
excellence has been the state. Consequently, political theory since
Hobbes’s Leviathan14 has focused largely on the functioning of states.
With its three epochal wars among states,15 the twentieth century
seemed to confirm the value of this state-centered focus. The most
influential work of political theory written during the third—or “cold”—
war of the century was John Rawls’s A Theory of Justice,16 a work
focused mainly on evaluating the distributive arrangements adopted
internally by states.17
The end of the twentieth century, though, led to some
reconsideration of political theory’s focus on the polis itself. The rise of
the European Union and the end of the Cold War combined to make
states seem both less necessary and (after the collapse of the Soviet
Union and Yugoslavia) less durable than before. Political theorists
gradually started to focus on other levels of communal organization and
to ask questions about the relationship between those organizations and
the state. One direction taken, under the rubric of multiculturalism, was
to focus on cultural or ethnic groupings of persons that typically
operated at the sub-state level.18 Another was to focus on identities,
groupings, and organizations that might operate above and outside the
state.19 This latter conversation, closely related to the topic of
multiculturalism, has proceeded under the heading of cosmopolitanism.
For contemporary political theorists, cosmopolitanism as citizenship
of the world also implies a critique of ordinary theories of political
obligation, with their tendency to focus on our duties to fellow citizens,
not to people elsewhere. The ultimate literal expression of
cosmopolitanism would of course be a single world government with
corresponding global citizenship. Today, such an aspiration is almost
unheard of in serious circles, notwithstanding the imaginings of the
Michigan militia and their paranoid brethren everywhere.20 Nevertheless
there is a type of contemporary cosmopolitanism, which had its origins
even before the end of the Cold War, that seeks to include everyone in
the world in a single global web of mutual obligations. This approach
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took Rawls’s influential theory and expanded it to the international
plane.21 Rawls had famously proposed that, in the original position,
behind the veil of ignorance, the members of a society would rationally
agree to a system of redistribution that would leave the worst-off person
at least as comfortable as he would have been under conditions of strict
egalitarian redistribution. The global approach—call it contractarian
cosmopolitanism22—took this Rawlsian redistribution to the world
level.
At a theoretical level, this expansion may be accomplished either by
treating states (or the peoples composing them) as members of a
redistributive social contract that follows an initial social contract within
states,23 or by treating individual people, wherever they live, as the
participants in a single, one-stage hypothetical social contract.24 At a
practical level, though, there is something unsatisfying about
contractarian cosmopolitanism. Though not as utopian as world
government, it is plagued by the mismatch between the theory of a
global contract and the reality of the power and persistence of the state
system in the face of the weakness and unenforceability of international
agreements. A theorist of contractarian cosmopolitanism could find it
“astonishing” that Rawls himself appeared to accept familiar, statecentered principles of international law.25 But in making the social
contract first a phenomenon of individual peoples, and only secondarily
and more weakly imagining a global contract, Rawls was in effect
acknowledging the institutional reality of the preeminence of states and
the weakness of international institutions.26
The practical limitations of contractarian cosmopolitanism opened
the door to another trend in political theory: the attempt to bring
something of the ideals of cosmopolitanism into relation with existing
duties of citizenship. It is not easy to epitomize the content of such an
approach or to explain exactly what is cosmopolitan about it.
Contractarian cosmopolitanism at least has the advantage of being
obviously cosmopolitan, in that it confers rights and duties on people
everywhere as though they were citizens of the same world entity. More
subtle, complex kinds of cosmopolitanism, however, insist on a balance
between thinking of oneself as a citizen of an actual state and imagining
oneself in terms of global obligation. Balancing makes for good political
theory, of course, but it does not always make for clarity or ease of
exposition. Nonetheless it deserves our attention, now more than ever.
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B. Prelude to Complex Cosmopolitanism
One step in the development of the political theory of complex
cosmopolitanism took place in 1994, when Martha Nussbaum published
an essay under the title “Patriotism and Cosmopolitanism.”27 In the
essay, Nussbaum, a distinguished classicist as well as a philosopher,
introduced cosmopolitanism through its Stoic origins. The Stoics, she
argued, transformed Diogenes’s bon mot into a more fully formed
theory. For them, the aspiration to be a citizen not of a particular polis
but of the world meant “that we should give our first allegiance to no
mere form of government, no temporal power, but to the moral
community made up by the humanity of all human beings.”28 Nussbaum
hastened to note that the Stoics were not seeking “the abolition of local
and national forms of political organization and the creation of a world
state.”29 They had in mind something else altogether—a shift in one’s
internal perspective away from the “local origins and group
memberships, so central to the self-image of the conventional Greek
male.”30
In presenting Stoic cosmopolitanism, Nussbaum emphasized the
participatory aspects of the view over its self-alienating aspect. The
choice reflected her goal of making cosmopolitanism into a useful tool
of political theory. As she well knew, the Stoics embraced the notion of
exile in a deep sense.31 They were fully capable of seeing the
cosmopolitan—even one who lived as a citizen in the place where he
was born—as a kind of internal exile, a lonely man who by embracing a
universal perspective weakened his affective bonds to the actually
existing political community around him.32 This notion has a long
subsequent philosophical history. From Avempace (d. 1138) in his
Governance of the Solitary33 to Joseph Soloveitchik (d. 1993) in his
Lonely Man of Faith,34 there have always been thinkers who emphasized
the obligation of the reflective individual to separate himself inwardly
from the society in which he is enmeshed. But this particular
philosophical tendency, embraced by at least some ancient thinkers who
could be called cosmopolitans, is in tension with the alternative impulse
to make the philosophical content of political theory useful to actual
state governance in the real world.
In a parallel sense, Nussbaum de-emphasized the world-government
theme that arguably can be found in Roman Stoicism. If a world state
were unimaginable to Diogenes at Athens, and if the Greek Stoics
speaking of citizenship were “picturing, as it were, a dream or image of
the philosopher’s well regulated society,”35 the same was hardly the case
for the citizens of the Roman Empire at its world-dominating height.
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One leading Stoic, Marcus Aurelius, was actually the emperor. For him,
and perhaps for other Roman Stoics, the notion of citizenship of the
world may have corresponded to citizenship in the Empire. This
cosmopolitan interest in at least the possibility of world government
would have been inappropriate for Nussbaum’s purposes, given the
unpopularity and great unlikelihood of world government today, not to
mention the discrediting of the Roman Empire itself.
By injecting cosmopolitanism into practical prescriptions for
political theory, and insisting on a cosmopolitanism with room for local,
“patriotic” attachments, Nussbaum foreshadowed what would become a
characteristic and often difficult feature of complex cosmopolitanism.
For cosmopolitanism to contribute to political theory--not to mention
policy debate--it must necessarily abjure some of the radicalism that
may be found in its ancient origins, and indeed beyond. It must move
away from Diogenes the Cynic’s hint that civic duty is a bit pointless.
To be useful in the real world, cosmopolitanism must be understood to
engage actual political duties, not to demonstrate their evanescence and
unimportance. It needs to deemphasize the side of Stoicism that
commanded internal alienation, and focus on the side that commends
political activity to help people everywhere. To some degree, complex
cosmopolitanism today must also steer away from the universalist oneworldism arguably present in some of its forms. A political
cosmopolitanism must be modified, regulated, and controlled so as to
engage the realities of the modern state and the system in which it
operates.
Such a reining-in of cosmopolitanism was visible in the response to
Nussbaum’s essay written by the philosopher and cultural theorist
Kwame Anthony Appiah.36 This essay, entitled Cosmopolitan Patriots,
took as its starting point two different statements by Appiah’s father: a
newspaper article arguing that Ghana (his home country) was worth
dying for, and an ethical will to his children reminding them that, as
both Ghanaians and Englishmen, they should “[r]emember that [they]
are citizens of the world.”37 Appiah reconciled the two “sentiments” of
cosmopolitanism and patriotism by asserting that cosmopolitanism, far
from demanding a universal form of identity, “celebrates the fact that
there are different local human ways of being.”38 At the same time,
Appiah went on to suggest that the state itself is a morally significant
(and desirable) structure, insofar as “living in political communities
narrower than the species is better for us than would be our engulfment
in a single world state.”39
Appiah’s formulation of two balanced sentiments was well drawn to
contribute to political theory. It eschewed the alienation and extreme
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universalism of radical cosmopolitanism. In particular, as Appiah
explicitly noted, the “current preoccupation” within political theory was
coming to center on the question of how to extend Rawls’s political
theory to the international realm, where Rawls himself had not (yet)
taken it.40 As it turned out, Nussbaum and Appiah were to become two
of the major figures in the conversation about complex
cosmopolitanism. Now, in 2006, more than a decade after their essays
first appeared, they have published books addressing the issues first
raised there. It is to these works that we now turn.
ii. Morals beyond Borders
A. What’s Wrong with the Social Contract?
Although Martha Nussbaum’s Frontiers of Justice41 takes the form
of a sustained criticism of Rawls, by her own account Nussbaum is after
even bigger game. Nussbaum sets out to criticize and supplement the
basic idea of the social contract which has dominated political theory
since Hobbes. The main tool she uses to accomplish this task is a
species of complex cosmopolitanism. It rests on the insight that social
contract theories correspond so closely to the design of states that they
cannot really tell us how to do justice to those who fall outside the basic
requirements of equal citizenship.
The argument of the book is involved, but Nussbaum’s challenge to
liberal social contract theory42 can be summarized with only limited
damage to its structure.43 It begins with the “Circumstances of Justice”
(always capitalized Nussbaum’s book), which are, roughly speaking, the
conditions under which justice can be said to apply as a relevant
criterion. The locus classicus for an account of these conditions is to be
found in Hume, who argued that the facts of human selfishness, limited
generosity, and the comparative scarcity of the material stuff we need to
sustain us were the circumstances that created a need for human
cooperation through a system of laws.44 Rawls drew on Hume’s
account, emphasizing that the possibility and need for cooperation arise
when individuals coexist in the same territory; are “roughly similar in
physical and mental powers” so that none alone can dominate the others;
live subject to conditions of “moderate scarcity”; and alongside their
complementary interests in cooperation also have differing life-plans.45
Nussbaum argues that social contract theories usually rely on
something like the circumstances of justice to explain why the contract
would be desirable for individuals to enter. This worries her, for two
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reasons. First, she focuses on Rawls’ suggestion that the parties suitable
for social cooperation must be free, equal, and independent.46 What
troubles Nussbaum are those cases in which these conditions cannot be
said to apply. Most important for our purposes,47 she argues that nationstates cannot be imagined as rough equals, given that they differ so
widely in size, power, and resources.48 This would appear to preclude
states from having the right incentives to entering into a redistributive
social contract of their own, which in turn means that the citizens of
those states may end up living under conditions of great inequality in
which some are barely surviving or are not surviving at all. Bracketing
the possibility that the social contract should exist among all persons
regardless of their states,49 Nussbaum considers this result to reflect a
major problem for social contractarianism.
Nussbaum’s second worry about the conditions for the social
contract has to do with the idea that human selfishness provides the
motivation that explains why people would (either actually or
hypothetically) enter into an agreement for mutual advantage.50 Hobbes
managed this problem by pointing out that although our natural passions
put us at odds with one another, the fact that humans are by nature
roughly equal in physical and mental capacities means they have an
incentive to enter into the social contract.51 Without fully embracing
Hobbes’ anthropology, Locke thought likewise that mutual advantage
was a source for the social contract, and, says Nussbaum, even “Kant
seems to hold that it is . . . advantageous . . . for all persons to join the
contract.”52
Nussbaum finds this starting assumption about mutual advantage
problematic. What happens when we cannot find a mutual advantage for
cooperation a given situation where some people--like people living in
other counties – are nevertheless in dire need? Can it really be the case
that justice as a category does not apply under these circumstances? For
Nussbaum, this limitation of social contract theory gives us a reason to
seek a non-contractarian alternative account of political justice.53
The place to start looking, Nussbaum says, is Hugo Grotius’ account
of “basic principles of international relations,” which have domestic
uses as well.54 These principles, she says, were built on a base derived
from the ancient Stoics (also, let us recall, the inventors of
cosmopolitanism), who believed that humans had both an inherent
dignity and an inherent bent toward sociability.55 Emphasizing these
features – not equality or selfishness-- led Grotius to reject a theory of
mutual advantage: “Grotius argues explicitly that we must not attempt to
derive our fundamental principles from an idea of mutual advantage
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alone; human sociability indicates that advantage is not the only reason
for which human beings act justly.”56
The avowedly Grotian alternative Nussbaum proposes grounds
justice in the idea of what she calls central human capabilities.57 These
are universal capacities of everyone everywhere, without which one
cannot live a life “worthy of human dignity.”58 Nussbaum explains that
her theory shares with Rawls’s (and liberalism generally) the core ideas
of human dignity and the inviolability of the person.59 It differs, though,
by explicitly rejecting the procedural fairness model in favor of
particular outcomes. Indeed, says Nussbaum, the capabilities approach
is outcome-driven and consequentialist: it begins with the basic human
capabilities, then works backward to develop an account of justice that
assures that people everywhere will be entitled to exercise those
capabilities.
Taken on its own terms, the capabilities approach would seem to
represent a basic challenge to contractarianism: if the social contract
cannot provide justice to all who deserve it, this would seem to call into
question its value as the basis for a theory of justice. Nussbaum
modestly prefers to say “not that we should reject Rawls’s theory or any
other contractarian theory, but that we should keep working on
alternative theories, which may possibly enhance our understanding of
justice and enable us to extend those very theories.”60 Elsewhere she
says it is up to the reader to decide if Rawls’s approach is still worth
pursuing.61 She also explains that she does not wish to reject the
contractarian cosmopolitanism of Thomas Pogge or Charles Beitz,62 and
her main criticisms of them relate to their vagueness.63 Given
Nussbaum’s professedly consequentialist view with respect to
capabilities, however, one might wonder whether her unwillingness to
jettison contractarianism might stem from similarly consequentialist
motives.
Cosmopolitanism is not explicitly invoked in Frontiers of Justice—
in fact, the term does not even appear in the book’s index. Nonetheless
its relevance to the capabilities approach is clear, and not only from the
Stoic origins that Nussbaum gives to Grotius. Nussbaum says that her
argument grew out of her thinking about international development
policy,64 the area from which Amartya Sen’s cognate work on
capabilities also sprung.65 As she acknowledges, the capabilities
approach was originally born as a way to replace the utilitarian
economic reasoning so prevalent in this field,66 but of course
utilitarianism is not the only target of the progressive movement in
international development. Still more fundamental an enemy is the view
that certain moral duties do not run across borders, to people in far-away
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places.67 Nussbaum’s concern that an adequate theory of justice must
apply to all persons everywhere flows naturally from her cosmopolitan
view that national boundaries are morally arbitrary.
B. The Social Contract and the State
It is, I think, significant that Nussbaum’s cosmopolitan skepticism,
which dates back at least to her 1994 essay, has now led Nussbaum to
question social contract theory. Her outcome-oriented approach grows
from the problem that social contract theory does not do an adequate job
of accounting for justice to persons outside the state. The historical
context in which social contract theory developed helps illuminate why
this should be so: born and reared alongside the modern state, social
contract theory gets into difficulties when it must confront either premodern or post-modern challenges of the kinds raised by cosmopolitan
theory.
Social contract theory is the archetypal liberal solution to the
question of the justifiability of the modern state. It does its strongest
work in making sense of the state’s structures and of the duties and
obligations of citizens living within it, and in justifying the coercive
legal apparatus that the state deploys to accomplish its goals. If we begin
with assumptions about the autonomy of individuals, we need some
theory to explain why the state might be justified in coercing those
rights-bearing individuals against their wills to do the things that the
state deems necessary.
Social contract theory traditionally answered the question by the
controversial mechanism of consent. We may justifiably be coerced
either because we have agreed to be coerced (actual consent); or because
we would have agreed to be coerced were we rational and given the
choice (hypothetical consent). Since we have agreed—or ought to have
agreed—we are not really being coerced at all, and (in principle at least)
our autonomy remains intact. If the state wishes to do something to us
that we would not have agreed to have done, then in fact this cannot be
justified. Our inalienable rights are protected, and through them our
dignity and inviolability as humans.
Notice that in its classical, Lockean form, social contract theory
mostly accounted for negative rights held against the state, while
authorizing coercion that did not violate those rights.68 This function
corresponded to the legal structures of the eighteenth century, which
protected negative liberties (rights against the state) rather than positive
liberties (rights to opportunities or resources). Rawls saved social
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contract theory from oblivion by using it to justify the redistributive
structure of the modern welfare state. Had it not been able to explain the
emergence of a positive right to a share in the overall wealth of the
society, social contract theory would have seemed irretrievably
irrelevant to the existing political order. In the process, Rawls also
sought to shift the function of consent in contractarianism by arguing
that hypothetical consent to certain moral principles does not authorize
coercion but rather offers a reason for believing that there is a natural
duty to comply with the state’s just demands. Rawls’s historical
importance thus derives from his extraordinary accomplishment of
grafting a Kantian-inspired moral theory onto a familiar discourse of
social contract, and using the resulting product to justify the Western
welfare state, and thus welfare capitalism itself.
In Rawls’s work, then, as in that of his predecessors, social contract
theory corresponded to the legal structures of the state, which now
through taxation appropriated wealth and redistributed it in the form of
property. It is no coincidence that A Theory of Justice (1971) was
roughly contemporaneous with Goldberg v. Kelly (1970),69 in which the
constitutional-legal character of the redistributive welfare state came
closest to being acknowledged by the Supreme Court. According to the
logic of Goldberg’s holding, welfare entitlements were not just
government largesse; they were actual entitlements due to citizens and
held by them in some version of familiar property terms.70 The state, on
this view, was redistributing wealth as a matter of the citizen’s right—
and contractarian political theory explained why this was justified.
So we should not be especially surprised if, as cosmopolitanism
moves political theory beyond the level of the state itself, social contract
theory begins to look inadequate to the task. Through Rawls, one may
see the astonishing flexibility and durability of social contract theory.
Hobbes’s contractarianism could justify despotism; Rousseau’s
contractarianism could, if necessary, be made to justify a dictatorship of
the proletariat; Locke’s that of a property-protecting slave republic;
Rawls’s the welfare state. Indeed, one could be forgiven for thinking
that social contract theory, properly tinkered with, could justify any
internal state structure.
But this flexibility depended, crucially, on the metaphor of
agreement among similarly situated people trying to preserve mutual
advantage, and that metaphor was closely conjoined to the structure of
the state. The force of Nussbaum’s complex cosmopolitanism is to urge
us to move our attention away from the state, to persons far away—and
when we do so, the power of the contract metaphor begins to melt away.
Nussbaum is quite right that we cannot easily be imagined to have
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entered into a mutually advantageous agreement with all the people in
the world, much less all the beings. Not coincidentally, we have
difficulty imagining joining others everywhere in being governed by a
common law—not unless we postulate a world-governing God for
whom distance is as nothing and the nations of the world are as a drop
from the bucket.
C. Law and the Consequences of Capabilities
What actual, legal obligations or institutions would arise if we were
to adopt Nussbaum’s capabilities approach as our own? The specter of
world government and the need to avoid it haunt Nussbaum’s concrete
proposals for implementing the capabilities approach that she advocates.
She wants everyone everywhere to be entitled to all the capabilities on
her list. She wants rich nations to transfer wealth to poor ones, and she
wants multinational corporations to promote capabilities wherever they
do business.71 But she also wants state sovereignty to be protected,
because the state is a morally meaningful “expression of human choice
and autonomy,”72 and because of the risks of tyranny, unaccountability,
and the erosion of diversity.73 So when it comes to establishing
international institutions to facilitate the transfer of wealth necessary to
deliver on the capabilities approach, Nussbaum calls for only a “thin
system of global governance,” with limited coercive powers—which on
further investigation turns out to look very similar to the international
order we have now, with a World Bank, an International Monetary
Fund, a General Agreement on Trade and Tariffs, a World Health
Organization, and other usual suspects.74
This recommendation is perfectly reasonable, and it successfully
represses the threat of world government. But in so doing it runs into the
other horn of the dilemma created by a chastened and constrained
cosmopolitanism: will it matter, in legal terms? If we are not to have a
world government, who is going to make sovereign states overcome
collective action problems and comply with their duties under the
capabilities approach by actually funding these institutions and
transferring wealth to poorer countries?75
I shall suggest later in this essay that it may be possible to envision
legal duties without a unified government or treaty regime at the back of
them; but for now it suffices to raise the question of how we should give
practical effect to the cosmopolitanism of capabilities. Of course states
inspired by the capabilities approach could pass their own laws directing
their governments to promote capabilities of persons elsewhere. But
these would not amount to the creation of legal relations between the
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citizens of the donor states and the recipients of their Nussbauminspired redistribution. A worldwide treaty promising to deliver the key
capabilities to all persons everywhere might do the trick. It would
certainly create international legal duties between the signatory states,
and maybe, by association, between signatory states and the individuals
to whom duties are owed. But on closer examination such a treaty looks
like contractual cosmopolitanism, a position Nussbaum does not, in this
work, adopt. Her reasons for this restraint are plausible ones, namely the
difficulty of imagining such an arrangement working in theory or
practice.
It emerges that the capabilities approach differs from the
contractarian in that it does perhaps a better job of telling us what people
are owed morally—but it does not tell us why we or even if would be
justified in coercing other people to give them their due. Nussbaum
acknowledges as much when she says that the allocation of
responsibility for capabilities-promotion to various international
institutions “is aspirational” but lacks “any coercive structure over the
whole that would enforce on any given part a definite set of tasks.”76
Indeed, says Nussbaum, referring back to Grotius and his Stoic
predecessors, her approach “is a version of the old natural law approach:
the requirements at the world level are moral requirements, not captured
fully in nay set of coercive political structures.”77
In principle, the capabilities approach could justify coercion
regarding, say, the transfer of property, without recourse to a global
social contract. The state may be justified in taking my property through
force or the threat of force because someone else needs it more than I
do, and indeed cannot live a life of human dignity without it. The
location of that other person is morally irrelevant. According to this
avowedly non-contractarian view, it does not matter that I myself might
not consent (hypothetically or otherwise) to a system of government that
takes my property for the purpose of raising to decency the standard of
living of people on another continent. Those people are owed such a
basic standard as a matter of morality, and it is my bad luck if I object.78
Nussbaum does not take this tack, perhaps because she does not wish
to compromise the ideal of autonomy in order to effectuate the ideal of
universal dignity—a tradeoff that sounds in the tradition of Marx’s 1844
Manuscripts,79 with their classic formulation of the notion of a “truly
human functioning.”80 There may be a connection between the statecentered localism of social contract theory and what is usually thought
to make that theory liberal: the focus on autonomy. The ideal of
autonomy underlies the mythic notion of free individuals coming
together by choice to form the polis.
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By encouraging a view of humans not primarily as citizens of such
voluntarily constructed entities, but rather as members of a broader
world, Nussbaum’s version of cosmopolitanism emphasizes the
unchosen fact of being human over the chosen fact of political
citizenship. In this sense, at least, cosmopolitanism creates some tension
with traditional contractarian liberalism and its concern with justifying
coercive law. According to social contract theory, our status as citizens
of particular law-governed states is freely chosen and, by hypothetical
consent, continuously re-chosen. None of us, however, chooses to be
born into the world.
iii. Ethics and Others
A. The Cosmopolitan Self
Kwame Anthony Appiah would surely reject the notion that a focus
on autonomy runs counter to cosmopolitanism in any way. Indeed, in
two nearly simultaneously published books, The Ethics of Identity81 and
Cosmopolitanism: Ethics in a World of Strangers,82 he develops an
attractive version of cosmopolitanism that derives from a Millian
commitment to the construction of the self through a series of highly
autonomous personal choices.83 Both books build on the ideas Appiah
first laid out in his 1994 reply to Nussbaum;84 and if The Ethics of
Identity is a systematic work while Cosmopolitanism is more of an
extended philosophical meditation on his father’s two dicta,85 both
sustain an internally consistent ethical vision, according to which we
must remember our obligations to people far away even as we take an
interest in the peculiarities of human difference. For Appiah, taking an
interest in difference means noticing the ways individual humans shape
their lives using the tools and materials provided by culture. This, then,
is a cosmopolitanism driven precisely by liberal autonomy.
The differences between Appiah’s cosmopolitanism and Nussbaum’s
are pronounced. Appiah’s brand—which he calls both “rooted
cosmopolitanism”86 and, in a moment of candor, “wish-washy
cosmopolitanism”87 —is more fine-grained and subtle than Nussbaum’s,
and also less radically demanding in the sphere of recentered
consciousness. His ancient motto comes not from a philosopher wracked
by the torments of self-alienation but from Terence, the Carthaginian
slave turned successful comic playwright: “I am human: nothing human
is alien to me.”88
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For Appiah, the key to a defensible and manageable
cosmopolitanism is that it must reconcile itself to “at least some forms
of partiality.”89 (This acknowledgment goes all the way back to
Appiah’s response to Nussbaum in 1994 and his desire to reconcile the
twin sentiments of patriotism and cosmopolitanism.)90 In order to justify
such partiality, Appiah has recourse to Ronald Dworkin’s distinction
between ethics, which “includes convictions about which kinds of lives
are good or bad for a person to lead,” and morality, which “includes
principles about how a person should treat other people.”91 Ethics is a
way of talking that makes sense only within a particular community of
persons who share a vision of the good life. “Ethical obligation . . . is
internal to . . . identity.”92 In the ethical sphere, therefore, partiality is
appropriate, and even necessary, to the extent one is partial to the ethical
community where one belongs. Partiality, however, has no place in
moral discourse, where all persons must be treated as possessing equal
worth.
Distinguishing partial ethics from universal morality turns out to
have far-reaching effects. It leads Appiah to propose a further distinction
between the state and other forms of community ranging from the nation
to “the county, the town, the street, the business, the craft, the
profession,” and beyond.93 These forms of organization have ethical
significance because they are “cared about by autonomous agents.”94
Communities like these deserve our partiality to the extent that they
enable (and presumably result from) the autonomous choices of
individuals to author their own lives in the Millian sense that Appiah
values. The state, by contrast, is something else again. “States . . . have
intrinsic moral value: they matter not because people care about them
but because they regulate our lives through forms of coercion that will
always require moral justification.”95
What does this distinction between ethically significant communities
and the morally significant state mean for rooted cosmopolitanism?
Rootedness—partiality to one’s community—is desirable on ethical
grounds. So, too, is cosmopolitanism, understood as concern for others
elsewhere and an interest in how they live. Within states, Appiah says,
there can be “decrees and injunctions”96 -- in other words, laws whose
coercive effects must justified in moral terms.97 But when the
conversation is not “within but among polities,”98 law no longer applies,
and so moral justification is not the issue. “We must rely on the ability
to listen and to talk to people whose commitments, beliefs, and projects
may seem distant from our own.”99 This is cosmopolitanism as ethical
enquiry—rich and deeply valuable, but operating on a different plane
than the one occupied by a political theory focused on the state.
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As a result of the distinction between ethically significant
communities and the morally significant state, it turns out that Appiah’s
“rooted cosmopolitanism” applies to the realm of personal relations
situated within communities but is of limited applicability at the level of
the state. To speak of rooted cosmopolitanism as an approach capable of
justifying binding laws would be an analytic error. Cosmopolitan ethics
cannot on their own justify the decrees and injunctions of coercive
law—for that work of political theory we need a moral accounting, not
an ethical one.
It follows, I think, that for Appiah, the cosmopolitan ethical attitude
is not well-formed to do the work of justifying legal coercion. It is,
rather, going to give us good ideas for how we ought to structure our
lives. We may well want to adopt some of those ethical insights into
positive law; but we are not going to be under a moral obligation to do
so, and indeed some forms of partiality that would be ethically desirable
within communities would be morally impermissible if the state were to
attempt to make them into law. The justification for coercion in our
system will have to come from some other source than cosmopolitan
ethics.
This approach of Appiah’s is wonderfully clear, and in applying it to
law, one can see that it is also theoretically elegant. But for our
purposes, it is important to note the apparently limited applicability of
Appiah’s ethical cosmopolitanism to the analysis of legal duty. In its
small-scale horizon, the measured, witty cosmopolitanism of Terence
has little to do with the wild-eyed philosophical ideal of the Stoics, or,
for that matter, the relentless universalism of the contractarian
cosmopolitans. Being worldly-wise is not quite the same as being a
citizen of the world.
B. Neutrality, Cosmopolitanism, and Coercion
Appiah is rigorously consistent in maintaining a distinction between
moral forms of argument that justify state coercion and ethical forms of
argument that, at least when applied to states, amount to non-binding
(though by no means weak) normative suggestions. This leads to some
surprising results in the controversial areas of lawmaking that one might
expect to be informed by cosmopolitan ethical attitudes. In particular,
when Appiah addresses the question of how law should engage
problems of identity, his terms of reference derive from moral theory,
not ethical theory.
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Take as one example the problem of respect for beliefs that we might
consider unreasonable. Imagine that the state adopts a law ordering
blood transfusions for unconscious patients who have a medical need for
them. Writing in The Ethics of Identity, Appiah introduces a moral
principle—“neutrality as equal respect”—according to which the state
must not “disadvantage anyone in virtue of his identity.”100 He then
applies that principle to blood transfusion law. Jehovah’s Witnesses, he
says, may object to the law on the ground that a transfusion will lead to
damnation. The state must then consider whether there is some policy
that would avoid thwarting the Witnesses.101 But there is no such policy,
for “a policy requiring us to establish consent would endanger the lives
of many.”102 The state may therefore justifiably adopt the law imposing
transfusions on the unconscious. Even though the Witnesses (among
others) will be coerced, Appiah says, they are not being coerced because
they are Witnesses, but because we have made a general law that cannot
tolerate exceptions without costing lives. They have therefore been
given equal respect.
Of course it will not look that way to the Witnesses. They will surely
feel that their concerns were rejected precisely because they were those
of a fringe religious minority. Appiah acknowledges that if we believed
the Witnesses and agreed that transfusions led to damnation, we would
have a reason not to pass the law in the first place.103 So the Witnesses’
belief is being rejected as false. Indeed, says Appiah, “[w]e mostly do
not think it is even reasonable to believe [that transfusions lead to
damnation].”104 The key to his view that the Witnesses are nonetheless
being respected equally must be that their belief is false (and
irrational)—irrespective of the fact that they hold it as Jehovah’s
Witnesses. We would react the same way to the false, irrational views of
non-religious persons or indeed anyone. The moral claim to equal
treatment does not entitle a group to have its partial views accepted or
even treated as plausible, just not to be rejected on identitarian grounds.
Yet in Cosmopolitanism, Appiah offers a striking counterpoint
through a discussion of theories about the causes of disease. In Ghana,
he says, it is not uncommon to ascribe illness to witchcraft.105 Appiah
acknowledges that this attribution will seem mistaken to Westerners
who have been reared on the germ theory, and in fact raises the
possibility that the belief in witchcraft is not merely false but
“irrational,”106 much like the Witnesses’ belief that blood transfusions
lead to damnation. Yet he rejects this suggestion, and on interesting
grounds. He points out that when most Manhattanites encounter minor
illness, they attribute the causes to viruses even when the virus cannot
be treated and no tests are done to ascertain the cause.107 Unless they are
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virologists, the Manhattanites are relying on authority, not independent
proof, for their theory of disease, just as the residents of Kumasi, Ghana
rely on authority in ascribing similar illnesses to witchcraft.108
From the undeniable fact that most people rely on authority rather
than proof to explain the world around them, Appiah concludes that
Ghanaians who believe in witchcraft are not being unreasonable. “What
it’s reasonable for you to think, faced with a particular experience,
depends on what ideas you already have.”109 This recognition turns out
to be an important piece of the cosmopolitan ethical picture. It clarifies
that we must engage in cross-cultural conversation without necessarily
expecting agreement.110 To be a cosmopolitan does not require
relativism about the truth—I am still entitled to believe that viruses
affect health while witchcraft does not—but it does require a certain
attitude toward reasonableness.
What is remarkable about the Cosmopolitanism passage on the
reasonableness of witchcraft is how it differs from the passage in The
Ethics of Identity on blood transfusions. Strictly speaking the two
passages do not contradict each other: the falsehood of the Witnesses’
view, not its unreasonableness, is the thing that according to Appiah
allows us morally to overrule it. (In this Appiah differs from Thomas
Nagel, according to whom we have no need to justify the state’s rational
decisions in the face of irrational beliefs. 111) But compare the attitudes
in Appiah’s two contemporaneous books. When it comes to making law,
there are truths and falsehoods, winners and losers. The Witnesses have
a moral right to be treated neutrally but not to win the argument, because
(we assert) they are wrong about damnation. But when it comes to
developing a cosmopolitan ethical attitude, we are urged to consider that
the belief in witchcraft is no less reasonable than the (coincidentally
true) belief in the germ theory of disease. The difference here depends
on the distinction between the impersonal morality of the state and the
deeply personalized ethic of cosmopolitanism.
This result is remarkable, to say the least. The respectful
cosmopolitan attitude buys the minority little that is legally useful to
them. Their particularity—in the sense of the ideas they “already
have”112—is what makes their views reasonable; and yet this
particularity must be ignored by the state in order for it to fulfill its
moral duty of neutrality. Even Appiah’s concern to try to avoid coercing
the Witnesses comes not from his cosmopolitanism but from the liberal
moral duty of equal respect.
Notice the difference between this outcome and the one that might
be urged by an alternative cosmopolitan legal order. Beginning with
Appiah’s expansive cosmopolitan conception of reasonableness, we
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might conclude that the state should treat equally all conceptions of the
world that are in this sense reasonable. If that were so, we could not so
cavalierly dismiss the Witnesses’ belief as false, and so we could not so
easily justify coercing them through the force of law. Cosmopolitanism
of this sort, with legal teeth, would raise serious and difficult problems
for explaining how it might ever be justified to coerce people who in
practice do not accept the reigning orthodoxies of the state. It might lead
us to the conclusion that the state in fact cannot coerce people who
reject the grounds for coercion. That would mean that the government of
a cosmopolis might be pretty weak when it came to certain outlying
cases—but it would also be a government with very attractive and
extensive respect for rights.
The difficulty with applying Appiah’s cosmopolitan ideas to law is
also revealed when Appiah, in Cosmopolitanism, discusses the right
regime to govern cultural patrimony. He adopts a cosmopolitan ethical
standpoint,113 one that pays attention both to local cultures and to the
interest of people everywhere in being exposed directly to important art
of all kinds. Appiah thinks that articles of cultural heritage should not
themselves be repatriated, for they in some sense belong to humanity;
but he also thinks Western museums should compensate the peoples
whose artifacts they plundered by sending them world art, including
Western art.114 This is true cosmopolitanism: reasonable, worldly, and a
perhaps just the slightest bit utopian.
The result of this original and rather appealing analysis, however, is
not a single legal or moral principle that must be applied by states.
Instead we get a looser set of recommendations that states or
international organizations would (by Appiah’s lights) do well to
consider. Laws could certainly be adopted that flow from Appiah’s
ethical arguments, but the justifiability of any coercion that followed
would come not from the ethical character of the laws but from the
moral justifiability of the entities that adopted them and their internal
political procedures—no small concern in the realm of international law.
The well-developed difference between the moral and the ethical in
Appiah’s writing ultimately makes it difficult to think of
cosmopolitanism as a source for justifying legal obligation.
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iv. Cosmopolitan Law
A. The Political Conception of Legal Duty
In order to reexamine the question of cosmopolitan legal duty, it is
worthwhile to begin by reminding ourselves how we think legal duty
arises within the polis. The traditional liberal answer to why the state is
justified in coercing us through law relies on consent. In one familiar
version of the consent story, the polis itself arises out of collective
agreement—whether actual or hypothetical--among autonomous
individuals. Duly constituted by contractual agreement, the polis is from
its very origin empowered to enact and apply coercive law subject to the
limitation that it may not violate basic rights.115 In this sense, classical
liberal theory makes entrance into political agreement a condition
precedent for the imposition of justifiable legal duty.116
It follows from this view, presumably, that in the absence of political
agreement, there can be no justified legal duty.117 Let us call this the
political conception of legal duty, because it is a theory that makes the
agreement that gives rise to the polis into a necessary condition of
law.118 Nussbaum seems to hold some version of this view; and
something like it is also implicit in Appiah’s view that legal obligation
arises within states, not among them.119 It has several important
consequences for legal duties to people who are outside the polis—
consequences that operate at the level of legal duties of individuals and
at the level of legal duties of states.
According to the political conception, individual legal duties arise
toward individual people who live outside the polis only to the extent
that such duties may be derived from legal duties that the state imposes
on its own citizens, who have entered into political agreement to be
bound by its laws. Thus, the state may justifiably direct its citizens not
to engage in certain harmful conduct wherever they might be, and
thereby create in its citizens a duty not to do certain kinds of harm even
when they are outside the polis. The United States Congress may, for
example, justifiably pass a law prohibiting its citizens from traveling
abroad for the purpose of having sex with minors.120 This law creates a
legal duty to minors abroad—insofar as they encounter Americans.
As for the state, it may enact laws binding itself (through its own
actors) from engaging in certain conduct, wherever it might be acting. A
salient example in this context would be the statute recently enacted by
Congress prohibiting government personnel from engaging in acts of
torture anywhere.121 This law also creates a duty that applies outside the
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polity insofar as U.S. government officials are active there. A variant on
this scenario is the entrance by the state into an international treaty
obligation, such as the Convention Against Torture.122 Even if the treaty
is not self-executing, so that no individual legal duty arises absent the
enactment of a separate statute, the state nevertheless incurs an
international legal duty not to torture.123
According to the political conception of legal duty, however, a state
could not justifiably enact or enforce laws governing the conduct of
persons who have never entered into political agreement with it.
Congress, on this view, could not pass a law prohibiting just anyone
from having sex with minors anywhere. According to this view, it would
be unjustified for the United States to enforce such a law against, say, a
German citizen who had sex with a minor in Thailand. Unlike an
American citizen, the German could not be said to have consented,
actually or hypothetically, to be bound by U.S. law.
It is an important but easily overlooked feature of this political
conception that under it, legal duties cannot arise except where there has
been political agreement. Thus, according to the political conception of
legal duty, if the United States is under no international legal duty and
no domestic legal duty not to engage in certain conduct, that conduct
necessarily remains lawful. Consider inhumane treatment that falls short
of torture as defined either by positive or customary international law124
and is outside the purview of the Eighth Amendment: if no law prohibits
the conduct, then according to the political theory of legal duty, it
remains lawful for the government of the United States. This feature has
been at the heart of the debate about recent legislation that among other
things specifies U.S. obligations to detainees under the Geneva
Conventions:125 critics have been arguing that the law in effect permits
(by not criminalizing) inhumane treatment that falls short of torture.
Does the political conception of legal duty underlie the practices of
U.S. law? This is not at all clear. Consider the following formulation
from the Restatement (Third) of Foreign Relations Law of the United
States:
Subject to § 403 [which prohibits jurisdiction when it would be
“unreasonable” for a set of specified reasons], a state has jurisdiction to
prescribe law with respect to
(1) (a) conduct that, wholly or in substantial part, takes place
within its territory;
(b) the status of persons, or interests in things, present within its
territory;
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(c) conduct outside its territory that has or is intended to have
substantial effect within its territory;
(2) the activities, interests, status, or relations of its nationals
outside as well as within its territory; and
(3) certain conduct outside its territory by persons not its
nationals that is directed against the security of the state or
against a limited class of other state interests.
The Restatement is not (consciously) a book of moral philosophy.
Nevertheless, this passage is intended normatively, and it makes sense
only if construed as intended to give an account of where and to whom
U.S. law may justifiably be applied.126 Its logic corresponds closely to
the political conception as I have presented it. The focus is first on the
state’s territory -- the space in which the political agreement finds its
primary expression; second on the “nationals” of the state, which is to
say those who participate in the agreement; and third and most remotely
on extraterritorial conduct by non-nationals that nevertheless directly
affects the state or its (important) interests. Conduct abroad not
involving the state or its citizens is putatively excluded.
Yet despite this formulation, some U.S. laws seem to challenge the
political conception of legal duty by holding liable persons who have
not entered into political agreement in or with the United States. Federal
law makes it a crime for anyone to kill Americans abroad, or even to
conspire to kill them.127 This law embodies what is sometimes called the
“passive personality principle,” which might possibly be justified under
the political conception of legal duty on the ground that the state is
protecting its citizens wherever they go.128 But the Alien Tort Claims
Act (ATCA) goes further, conferring subject matter jurisdiction on the
U.S. courts to adjudicate cases where non-citizens have violated either a
U.S. treaty or “the law of nations,” without regard to where that conduct
has occurred.129 Another U.S. law criminalizes hijacking an aircraft
outside the United States.130 The Restatement provides a principle that
covers such expansive exercises of extraterritorial jurisdiction:
A state has jurisdiction to define and prescribe punishment for
certain offenses recognized by the community of nations as of
universal concern, such as piracy, slave trade, attacks on or
hijacking of aircraft, genocide, war crimes, and perhaps certain
acts of terrorism, even where none of the bases of jurisdiction
indicated in § 402 [discussed above] is present.131
It seems possible that this formulation of universal jurisdiction, like
the ATCA that it arguably covers, does not rest on the political
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conception of legal duty. Persons subjected to liability under the terms
of a U.S. treaty or even the law of nations may never have agreed to be
so bound; and it is possible to imagine reasonable people who would
never have agreed hypothetically to be so bound.
Of course the political conception of legal duty could be at work
here. International political agreements might be the reason that
prosecutions under universal jurisdiction are justified; and all persons
might be understood to have consented hypothetically to abide by such
agreements. But this seems at least a little bit far-fetched as an account
of why it is justifiable to hold an individual – who, let us imagine, may
be a stateless person like a pirate--liable for actions barred by
agreements between states.
It is true that the U.S. legal principle of personal jurisdiction requires
that a party either be in the United States or have substantial contacts
with the United States in order for laws like the ATCA to be applied to
him by the U.S. courts.132 It could perhaps be argued, then, that the
personal jurisdiction requirement incorporates the political conception
of legal duty. Through its application, U.S. laws will be applied in U.S.
courts only to persons who have entered into some sort of (limited)
agreement with the state to be present therein.
The problem with this suggestion is that the ATCA—like all U.S.
laws—can be applied to persons who are unwillingly and even
unlawfully present within the jurisdiction of the U.S. courts.133 They
might have been kidnapped (“male captus”) or extradited or captured on
the battlefield or served with a subpoena while in the U.S. on U.N.
business, but in any case it is very difficult to claim that they have
agreed or would have agreed to be subjected to U.S. law. Even if such a
claim could be sustained in the case of someone who kills a U.S.
citizen—the theory being that by that act the killer consents to U.S.
jurisdiction—it would not work, presumably, for a person who is
abducted abroad, brought into the United States, and then subjected to
jurisdiction.134
Furthermore, in the case of the ATCA, even if the defendant enters
the United States willingly, it is far from clear that by this act he
consents to be held liable for conduct he may have performed years
before, outside the United States. In the extreme case, the conduct might
not have been unlawful under some U.S. treaty even when it was
performed, but might have become unlawful via a retrospective
treatyconferring civil liability.135 This does not look much like a
political conception of legal duty. It leaves us to wonder if some other
theory might be at work.
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B. Cosmopolitan Legal Duty
1. Nature’s Option
How would a cosmopolitan conception of legal duty differ from a
political conception? A world government would create legal duties on
all and toward all—and could do so without, in theory, violating the
principle of consent or political membership. Contractarian
cosmopolitanism offers another possible version of cosmopolitan legal
duties. A world treaty arrangement might do the same. It could confer
legal duties on and toward all states or all citizens.
But notice that these views, though undoubtedly cosmopolitan in
their substance, essentially embrace the political conception of legal
duty. Agreement is made the condition of legal duty—it is just that the
agreement is extended globally, either through the original social
contract or some secondary contract among peoples or states. Legal
coercion is said to be justified by virtue of participation in that bordertranscending agreement.
I want to suggest that it is possible to imagine–and subsequently to
evaluate--a conception of legal duty that is cosmopolitan in a different
and arguably deeper sense. Such a conception would eschew the notion
that legal duty derives from actual or hypothetical agreement, however,
extended. Instead the imposition of legal duty would be justified on the
basis of some other principle that would extend to people and places
everywhere, regardless of whether they had ever actually agreed with
each other or hypothetically would so agree.
What principle, then, would satisfy this cosmopolitan conception of
legal duty? One possible answer is that legal duty is justified insofar as
it may be understood as a species of natural duty. It seems implausible
in the extreme to think that there could be a natural duty to comply with
any old law promulgated by any old lawgiving entity. But perhaps some
laws do rise to the level of justifiably mandating obedience as a matter
of natural duty. If so, the duty to obey such a law would apply even if
one had no agreement of any kind with the entity that brought the law
into existence. The duty would apply everywhere, and to everyone. Such
a conception of legal duty would be distinctively cosmopolitan, not
political in the sense I have been using of deriving from agreement.
What laws would fill this bill of mandating obedience as a natural
duty? The most obvious and traditional answer--and one today in some
disrepute – is that natural laws, that is to say laws inherent to the nature
of persons, must be followed as a matter of natural duty. This would
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certainly have been the answer of the Stoic cosmopolitans, who were
sympathetic to the notion of a universal law of nature. Another person
who treats me with hostility, said Marcus Aurelius, must be met with the
recognition of his common humanity. One must say that he
is from one of the same stock, and a kinsman and partner, one
who knows not however what is according to his nature. But I
know; for this reason I behave towards him according to the
natural law of fellowship with benevolence and justice.136
This natural law deserves my obedience just because it is natural;
and it certainly transcends political agreement. Indeed, this view of
humans as belonging to a common stock tends to undercut the very
notion of political duty by destabilizing the archetypal political
distinction between friend and foe.137 But Marcus was not undermining
the notion of legal duty. (After all, as emperor he was presiding over
and contributing to the most advanced legal system the world had ever
known.)138 The reason there was no tension for Marcus is that he
presumably thought our legal duties, whether enacted by the emperor or
otherwise, rested upon the natural law of human benevolence.139
Closer to home than ancient Stoicism, the affinity between natural
law theory and a cosmopolitan conception of legal duty may go some
way toward explaining those elements of U.S. law that seem to rely on
such a cosmopolitan theory. After all, the authors of the Declaration of
Independence articulated a universal natural law theory in order to
justify what was otherwise an act of disobedience to the norms of the
British constitution. The U.S. Constitution itself studiously avoided the
problem of natural law, but vestiges of natural law theory may be found
in various places in our legal universe.140 Natural law ideas have also
come into play whenever complex problems of obedience to legal duty
have arisen in American legal thought. Martin Luther King, Jr.’s “Letter
from a Birmingham Jail,” with its dual appeal to the law of God and the
laws of man, provides one of the most famous examples.141
Of course today it is at the very least unfashionable–and very
possibly irresponsible--to subscribe to the notion of natural laws to
which obedience is a natural duty. Our account of which laws mandate a
natural duty of obedience will have to be more circumscribed, and will
have to derive not from nature but from the inherent justice of those
laws. Nevertheless this possibility of a natural duty to obey at least some
just laws, regardless of actual or hypothetical agreement to enter the
jurisdiction of the entity that enacted them, is not as outré as it might at
first sound.
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Building upon Rawls’ view that the duty of justice is “a fundamental
natural duty” requiring us “to support and comply with just institutions
that apply to us,”142 Jeremy Waldron has argued that “we have a natural
duty to support the laws and institutions of a just state.”143 Waldron
acknowledges that there is something special about the duty to comply
with just institutions that, in Rawls’ phrase, “apply to us” in that we may
be counted among the persons “in respect of whose interests a just
institution is just.”144 But he extends the duty beyond borders to include
what one might call the weakly cosmopolitan natural duty not to
interfere with the just institutions in someone else’s country.145 More
important for our purposes, Waldron goes on to suggest that if an
institution presents itself as capable of administering justice for some
relevant range of persons, and actually is capable of so doing, there may
be some duty to support and comply with it, not only to refrain from
interfering. He concludes that his theory of natural duty “envisages
moral requirement binding us to a political organization . . . quite apart
from our agreement to be so bound, and quite apart from any benefits
the organization has conferred on us.”146
What I am imagining as a cosmopolitan natural duty to comply with
the law is not precisely the same as Waldron’s natural duty to obey the
laws of a just state. For Waldron, the natural duty flows to the just state
that promulgates the law; and that organization can only claim our
compliance if it is actually capable of delivering on its promise of
justice. But I do not think that the institutional pedigree of a law need
necessarily be relevant to the existence of a natural duty to comply with
it. In fact, there might be a natural duty to obey a truly just law even if it
was not promulgated by a state (or states) at all.
To see why this is so, consider why it is that Waldron makes the
natural duty to obey a just law run to the state: it is, I imagine, because
he is following Rawls’ view (derived in turn from Hume147) that justice
is the virtue of political organizations. It would, according to this view,
be absurd to speak of a “just” law promulgated by anything other than a
political organization. The feature of justice in a law is borrowed from
the justice of the institution that gives the law life. But this view
depends, I think, on the idea that laws properly so-called always come
into existence from the top down, from the commands of unitary
sovereigns or sovereign-like entities capable of assuring cooperation.
Waldron explains that assurance of cooperation is a key feature of
justice, and he says that such assurance can be provided “only if the
number of institutions addressing the problem that concerns me is
limited (perhaps to one).”148
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This need not be so. Legal systems often come into existence
piecemeal, first competing with other means of dispute resolution and of
the exercise of power. The modern state may need to assert a monopoly
on violence, but there can be (there were!) laws without modern states.
Whether it is a medieval English king urging individuals to seek justice
in his courts rather than those of the feudal lords, or a qadi setting up
shop to adjudicate disputes under Islamic law in the wake of the collapse
of the state in Afghanistan or Somalia, there are persons and institutions
who do law in the absence of any political agreement--and their legal
judgments are susceptible of being adjudged just or unjust.
Thus, when one initially powerless person or entity proposes some
law, and many persons or states then develop the practice of voluntarily
complying with it, there can emerge a just norm that eventually may be
enforced by a collectivity that has formed around the practice of
compliance. It would be a mistake, I think, to say that the initial
proposal is not susceptible of being described as just, and that only the
fully developed, enforceable norm associated with a robust institution is
capable of being labeled properly just. A norm only modestly and
incompletely enforced can be just, and it can be law.
Now if it is true that there can be just laws without states attached to
them, then there could perhaps be a natural duty to obey some such just
laws. This natural duty would exist wholly outside of political
agreement of any kind. In fact, such a natural duty to obey just laws
might be especially salient where there was no single dominant political
agreement, no effective modern state. This situation--the circumstances
of justice for such laws, if you will–would obtain in failed states or
quasi-anarchic situations. And it would obtain, mutatis mutandis, in the
international sphere.
2. The Moral Argument for Universal Jurisdiction
It is possible, then, to imagine a cosmopolitan conception of legal
duty that relies on a natural duty to comply with just laws. But what if
we wish to avoid the difficult subject of natural duty altogether, and
postulate other versions of a cosmopolitan conception? One way to get
at an alternative is to examine the legal doctrines that seem to rest upon
such a conception, and to try to uncover their theoretical roots.
Universal jurisdiction is the leading example of a legal doctrine that
sits uneasily with the political conception of legal duty. The view
associated with universal jurisdiction seems to be that all legitimate
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local legal systems ought to embrace some universal commitments to
persons everywhere. But why?
One simple and even attractive answer is that legal systems should
embrace these universal commitments simply in virtue of being
legitimate legal systems. To be a legitimate legal system, on this view-coercing and demanding compliance--requires satisfying some basic
moral requirements. Those requirements will add up to a moral account
of what justifies the very undertaking of doing law. This account does
not focus on the duty to comply with a system that satisfies these moral
requirements. Instead it focuses on the justifiability of coercing people
who as a matter of luck come into contact with the system. The
justification for subjecting them to jurisdiction would derive from the
cosmopolitan insight that that moral significance should not depend on
accidents of place. In other words, it would be morally arbitrary to
exempt some persons from legal regulation just because of where they
happen to live or where they happen to be when the system encounters
them.
Let me begin by sketching the claim that a legal system, to qualify as
legitimate, must satisfy some substantive moral requirements.149 It
would be foolhardy to attempt to list all such requirements here. But let
us say that one such moral requirement is that the legal system must not
make morally arbitrary judgments among persons. Another might be
that heinous crimes – a category defined in moral terms – must not be
left unpunished. A third requirement might be that basic human rights
must be protected.
These three moral requirements – which are only a small subset of
all the requirements one could imagine -- should suffice to make out the
basic argument I have in mind. There will no doubt be disagreement
among legal systems about what distinctions between persons are
arbitrary, which crimes are heinous, and exactly what count as basic
human rights. But no matter: we should be able to agree that no legal
system that fails to satisfy some version of any of these three principles
should be counted as a morally legitimate system.
Now consider the situation where a particular local legal system
finds itself seized of someone who has, say, committed unquestionably
heinous crimes. (The standard theory of universal jurisdiction includes
piracy, hijacking, and other crimes notable mostly for occurring outside
the boundaries of states; but also genocide, presumably included
because it is thought to be so horrible.) The system must not let these
crimes go unpunished. It would be morally arbitrary to punish only
nationals, not non-nationals, for these crimes. And when it comes to
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detaining or trying such a person, his basic human rights cannot be
violated without compromising the third principle.
If the legal system is to satisfy its requirements for moral legitimacy,
it must try and punish the offender. It is not a satisfying answer to say
that whether a non-national may be tried is itself an instance of the
question whether non-punishment of foreign nationals would be morally
arbitrary. Even if one were to concede that different moral standards are
applicable to the question of the wrongfulness of the defendant’s
conduct or the propriety of holding him liable,150 it still must be
explained why it would not be arbitrary to punish one murderer and free
another just because of the accident of where the crime was committed.
The cosmopolitan would surely hold the view that the location of the
crime is irrelevant: murder is as wrong here as in Persia.151
Notice that the justifiability of coercive legal action in this instance
does not rest primarily on the legal duty of the defendant. It is simply an
accident that he has fallen into the hands of this legal system. It is his
bad luck. Indeed, even if some legal wrong has been done in bringing
him into custody – if he falls under the doctrine of male captus – this
accidental fact also may be morally arbitrary with respect to the
system’s duty to punish him. (This is the cosmopolitan moral insight
behind the American rule that a person may be subjected to jurisdiction
even when he ought not be in the U.S.152) We are faced here with a case
not dissimilar from the freeing of a murderer on a procedural
technicality; and as we know, justifying such a decision on moral
grounds probably depends on some claim about the justice of the
system. Here, the legitimacy of the system probably cannot withstand
the decision to release the murderer because of an accident of place of
his crime.
Fully cashed out, this view would generate a cosmopolitan
conception of legal duty insofar as each system would have the duty to
apply its version of the set of universal laws to everyone with whom it
comes into contact. According to this view, the cure for the quandary of
failing to do justice to the people who fall outside a jurisdiction is
simply to override the jurisdictional boundaries and do justice to all
comers. The United States, on this view, might not be warranted in
enacting and then seeking to apply a traffic code purporting to govern
the behavior of Germans in Thailand. But it might well be warranted in
passing and applying laws that protect the universal human rights of all
minors against forcible sexual exploitation. Human rights violations
anywhere are the business of good persons—and good legal systems—
everywhere.
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This universal jurisdiction idea, which is by no means fanciful, does
not imply or require any institutions of world government. To the
contrary, it leaves us with the local legal systems we have, and seeks to
have each of them do what is morally right. Something like this notion
arguably inheres in the ATCA’s authorization of suits by one foreigner
against another for violations of the law of nations that may have taken
place outside the United States.153
The strongest theoretical argument against this kind of universal
jurisdiction is that it conflates the moral wrongs done by human rights
violators with legal wrongs, and so assumes that any serious moral harm
must be susceptible to legal sanction. In a sense this is a fair criticism.
Nevertheless the argument rests not on the notion that some wrongs are
so grave that they must be unlawful, but rather on the proposition that
actually existing legal systems must address grave wrongs that come
before them if they are to justify their existence. Legality and morality
are not wholly conflated. The universal rights enforced in various
jurisdictions can be made known in advance. They will not reach all
wrongs, just the most egregious. Those wrongs may be sanctioned, not
because their doers have agreed to be bound, but because it would be
morally illegitimate for a just legal system to let them pass unpunished.
3. Minimalist Legal Cosmopolitanism
The foregoing account of a cosmopolitan conception of legal duty
derived from the theory of universal jurisdiction is potentially quite
radical. It could potentially be used to expand the reach of universal
jurisdiction to cover a broad range of crimes on which there is no
international consensus. As a result, it is likely to be unpopular with
those who fear being subjected to the legal regimes of other countries.
So it is also worth considering a more modest version of a cosmopolitan
conception of legal duty.
Like the approach derived from universal jurisdiction, this approach,
too would begin with an account of the morality of legal systems. But
instead of focusing on the moral legitimacy of any one particular legal
system, this approach – call it minimalist legal cosmopolitanism –
would focus on the moral legitimacy of the summed set of all operating
legal systems around the world. The central claim would be that we are
justified in applying coercive law to particular persons in order to
achieve the overall goal of rendering legitimate the entire global set of
legal systems.
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The core insight in back of such a minimalist cosmopolitan approach
is the normative view that some law must apply to every person and
action, either authorizing it or prohibiting it. According to this view, no
conduct or person should be deemed “off the grid” legally speaking
because of the morally arbitrary accident of where the person is or the
conduct has occurred. The set of global legal systems would be morally
illegitimate if it allowed law-free zones in which the accident of place or
status meant that there was no law at all. Not all law must reach
everywhere, but every place and person must be subject to some law.
Thus, in the world envisioned by minimalist legal cosmopolitanism,
individual legal systems would not adopt universal jurisdiction, and
would ordinarily stick to applying their own local laws. But those local
laws would be arranged and interpreted to avoid the anomaly of
situations in which no law at all applies. If some local legal system
refused to admit that its laws applied at all to a given situation, then
other legal systems would, in a limited way, be justified in expanding
their jurisdictions to fill the apparent gap – indeed, there would exist a
general moral duty that at least one legal system extend itself to fill it.
There would not need to be a single principle of universal jurisdiction—
but some jurisdiction would apply everywhere. The result would
preclude the possibility of legal vacuum – a possibility that can logically
arise under the political conception of legal duty. No place on earth
would be treated as a law-free zone.154
The Rome statute of the International Criminal Court (ICC) arguably
enacts a version of this sort of minimalist legal cosmopolitanism.
Although the ICC is sometimes depicted in the United States as the
harbinger of universal jurisdiction, in fact its jurisdiction kicks in when
a local legal system has inadequately addressed a crime, either by failing
to prohibit the conduct or failing to bring an offender to justice.155 The
ICC therefore functions as a stopgap to fill legal vacuums that are
treated as morally illegitimate. It would of course be possible to have
minimalist legal cosmopolitanism without an international organization
stepping in to fill local gaps. The gaps could be filled locally. But it is
easy to see that there is a practical benefit to a single entity playing this
role, provided it has adequate resources and performs well.
Guantánamo Bay gives us an illustrative example of what minimalist
legal cosmopolitanism would look like in practice at the local level. In
front of the Supreme Court, the Bush Administration maintained that
Guantánamo was not governed by U.S. law, but also was not governed
by Cuban law, because it was leased in perpetuity from the predecessor
government of Cuba.156 (The island of Diego Garcia, leased by the
United States from the British Crown, is another example of a spot
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where the “off the grid” argument could be mounted;157 there are
persistent reports of secret U.S. detention facilities there.158)
Minimalist legal cosmopolitanism would hold that it is justified and
indeed obligatory for some law to apply in Guantánamo. It is possible to
interpret the Court’s decision in Rasul v. Bush along these lines.
Although a precedent of the Court had denied that the federal habeas
corpus statute applied in Guantánamo159 (which was the reason the
government had put the detainees there in the first place), the Court bent
over backwards to distinguish that case, all but overruling it to hold that
the habeas statute did apply there.160 The Court also asserted that in
effect, the United States exercised control over Guantánamo, and that
the federal habeas law therefore applied there.161
These statements suggest that the Court did not want to accept the
Government’s argument that Guantánamo is a place where no law
applies. The justices’ motivation could have been simply that such a
holding would render U.S. law morally illegitimate; but even this view
suggests that the illegitimacy would be part of a broader international
problem about the legitimacy of the set of all legal systems. More to the
point, finding such a gap would have invited the international
community to attempt to plug it in some way.
A different version of the argument against legal gaps may be seen
in United States v. Hamdan. This time the Government maintained not
that a place was off the legal grid, but that certain persons were: it
asserted inter alia that that no provision of the Geneva Conventions
applied to “enemy combatants” captured on the battlefield in
Afghanistan.162 Once again, the Court rejected this view. It held
narrowly that the Government could not rely on this theory, and that
Common Article Three of the Geneva Conventions did apply to the
detainee in question and others similarly situated.163
What makes this view cosmopolitan, despite its reliance on local
laws, is its normative suggestion that as a citizen of the world, I should
always be protected by the laws of the place in which I happen to be.
This is not because I owe or am owed some political duty to the polis in
that place. Nor is it because some agreement unites the world. It is
because law ought to protect the citizen of the world everywhere in the
world.
On this view, legal duties still correspond to political boundaries. But
jurisdiction is not a moral or theoretical consequence of borders; it is a
practical consequence of them. To a cosmopolitan, we are only
accidentally citizens of states. We are not, however, only accidentally
bound by laws. Wherever we go, some law should find us and bind us.
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Conclusion
At its irreducible core, cosmopolitanism demands that the general
human qualities of another be put ahead of his particular allegiances. It
follows that, through the heuristic device of the “citizen of the world,”
cosmopolitanism does intend to weaken somewhat our sense of the
primacy of political obligation.164 It is therefore intriguing that, taken on
its own terms, the cosmopolitan attitude does not weaken legal
obligation the way it does particular political bonds. One might imagine
that given the close association between the polis and the law,
weakening bonds to the one might weaken the sense of a duty to the
other. Yet there is no discernible antinomian thread in the cosmopolitan
tradition.
Why doesn’t cosmopolitanism weaken legal obligation alongside
political obligation? The reason lies, I think, precisely in its stubborn
insistence that the state is not the right level of analysis for making sense
of our lives and obligations–not even the legal ones. For the
cosmopolitan, there is no weakening of legal duty when one turns away
from the state because legal duty does not ultimately derive from the
state—nor, one might add, from fear of punishment by it.
Cosmopolitanism has always been interested in the predicament of
the stranger, whether it is the expatriate who has abandoned his state to
become a citizen of the world or the inwardly exiled philosopher who
has weakened his affective bonds to the political community. I have
suggested in this essay that the emphasis on the stranger may also
suggests some theories that would account for our legal duties to the
stranger, and his to us.
Law, on the account I have been offering, contains at once the
commands of a particular community and an aspiration to the universal.
Diogenes the Cynic made a characteristically barbed comment that may
be read to incorporate this duality of the global and the local. “[I]t is
impossible,” he said, “for society to exist without law.”165 Yet at same
time, “there is no advantage to law without a city.”166 Law, in its purest
and most general sense, is the condition for civilization itself. But the
institutions that apply law best are in the end political ones; and without
them, the best legal principles can give humans no advantage.
1. See, e.g., Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006); Hamdi v. Rumsfeld, 542
U.S. 507 (2004); Rasul v. Bush, 542 U.S. 466 (2004).
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2. For example, detainees in secret facilities in places of doubtful jurisdiction like the
island of Diego Garcia, a British possession on lease to the United States for
military purposes. See [journalism]. [AU: Please add citations.]
3. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (considering liability of a
non-U.S. citizen to a non-U.S. citizen for events taking place outside the United
States under the Alien Tort Claims Act 28 U.S.C. § 1350 (2000)).
4. Many such internal government memoranda appear in THE TORTURE PAPERS: THE
ROAD TO ABU GHRAIB (Karen Greenberg and Joshua Dratel eds. 2004). For my
view on their character, see Noah Feldman, Ugly Americans, in THE TORTURE
DEBATE (Karen Greenberg ed. 2006) 267.
5. Martha C. Nussbaum, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES
MEMBERSHIP (2006).
6. Kwame Anthony Appiah, COSMOPOLITANISM: ETHICS IN A WORLD OF STRANGERS
(2006) [hereinafter Appiah, Cosmopolitanism]; Kwame Anthony Appiah, THE
ETHICS OF IDENTITY (2005) [hereinafter Appiah, Ethics of Identity].
7. Cf. Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative, 25 U.
MICH. J.L. REFORM 751, 754 (1992), revisited by Jeremy Waldron, What Is
Cosmopolitan?, 8 J.POL. PHIL. 227, 231-34, 243 (2000).
8. DIOGENES LAERTIUS, 2 LIVES OF EMINENT PHILOSOPHERS 65 (Bk vi.63)
(R.D.Hicks trans. 1972) (c. 200) [hereinafter DIOGENES LAERTIUS]. [LE Note
switch to the Loeb edition, which is more appropriate from a scholarly
standpoint. Also note we should include book and section #s in addition to
loeb ed page number.]
9. Id. at 23 (Bk. V. 20); 51 (Bk. Vi.49) (“Again, when some one reminded him that
the people of Sinope had sentenced him to exile, ‘and I them,’ said he, ‘to homestaying.’”)
10. See, e.g., ARISTOTLE, NICOMACHEAN ETHICS Bk I.v 1095a-1096a (H. Rackham
trans. 1926) 15-16 (discussing the active life of politics).
11. Id. at 55 (Bk v.54).
12. See SAINT AUGUSTINE, DE CIVITATE DEI (Marcus Dods trans., Modern Library
1950) (426).
13. For works treating the umma as a polis see, for example, AVERROES ON PLATO’S
REPUBLIC (Ralph Lerner trans., Cornell Univ. Press 2005); IBN KHALDÛN, THE
MUQADDIMAH: AN INTRODUCTION TO HISTORY (Franz Rosenthal trans., Princeton
Univ. Press 1967)
14. THOMAS HOBBES, LEVIATHAN (Richard Tuck ed., Cambridge Univ. Press 1991)
(1651).
15. See generally PHILIP BOBBITT, THE SHIELD OF ACHILLES: WAR, PEACE, AND THE
COURSE OF HISTORY (2002) (describing a single long war in the twentieth century
made up of the two world wars and the Cold War.
16. JOHN RAWLS, A THEORY OF JUSTICE (1971).
17. Robert Nozick’s famous contemporary work, Anarchy, State, and Utopia (1974),
also related primarily to the distributive consequences of the author’s account of
the justifiable state structure. Rawls did of course touch on international issues in A
Theory of Justice, see RAWLS, supra note 16, at 377-79, but the book’s overall
focus is justice at the state level.
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18. See, e.g., WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF
MINORITY RIGHTS (1995); THE RIGHTS OF MINORITY CULTURES (Will Kymlicka
ed., 1995).
19. See, e.g., CHARLES R. BEITZ, POLITICAL THEORY AND INTERNATIONAL RELATIONS
(1979) [hereinafter Beitz, Political Theory]; THOMAS W. POGGE, REALIZING
RAWLS (1989) [hereinafter Pogge, Realizing Rawls]. Also useful are shorter works
by these authors, such as Charles R. Beitz, Bounded Morality: Justice and the
State in World Politics, 33 Int’l Org. 405 (1979) [hereinafter Beitz, Bounded
Morality]; and Thomas Pogge, Rawls and Global Justice, 18 Can. J. Phil. 227
(1988) [hereinafter Pogge, Rawls and Global Justice]. Although both Beitz and
Pogge have been important in the subsequent cosmopolitanism debates, neither by
himself sparked the degree of attention to problems of international justice that
followed the end of the Cold War.
20. See Jack Goldsmith, Liberal Democracy and Cosmopolitan Duty, 55 STAN. L.
REV. 1667, 1691-92 (2003) (summarizing the primary objections to world
government and noting that “[c]osmopolitan theorists are usually quick to deny
any desire for [one]”). This was not true a century ago, when world government
was the rage among a certain group of utopian thinkers. See John Fabian Witt,
Crystal Eastman and the Internationalist Beginnings of American Civil Liberties,
54 DUKE L.J. 705 (2004).
21. See BEITZ, POLITICAL THEORY, supra note 19, at 136-43 (describing a Rawlsinspired principle of cross-border natural resource redistribution); POGGE, supra
note 19, at 240-73 (arguing for globalized contractarianism).
22. Cf. POGGE, REALIZING RAWLS, supra note 19, at 240 (referring to Rawls’s vision
as “cosmopolitan”).
23. Beitz. [AU: Please add full cite—if you could cite to chapters or pages within
the work, that would be helpful.]
24. Pogge. [AU: Same comment as above.]
25. POGGE, REALIZING RAWLS, supra note 19, at 243-44.
26. Id. at 244 (noting that Rawls conceives of justice as a property of institutions
“which, by hypothesis, are absent on the global plane.”) See also RAWLS, A
THEORY OF JUSTICE, supra note xx, at 8 (asserting that the “significance” of
considering justice within a particular society “is obvious and needs no
explanation.”
27. The essay appeared in the Boston Review together with a number of responses by
important philosophical and legal figures, and was later collected and expanded
into a short book alongside those responses and a few others. Martha C.
Nussbaum, Patriotism and Cosmopolitanism, BOSTON REV., Oct.-Nov. 1994, at 3
[hereinafter Nussbaum, Boston Review Essay], reprinted in FOR LOVE OF
COUNTRY: DEBATING THE LIMITS OF PATRIOTISM 2 (Joshua Cohen ed., 1996)
[hereinafter Nussbaum, Patriotism and Cosmopolitanism].
28. Nussbaum, Patriotism and Cosmopolitanism, supra note 27, at 7.
29. Id.
30. Id. at 6-7.
31. Cf. PLUTARCH, On Exile, in 7 Plutarch’s Moralia 527 (Philip H. De Lacy and
Benedict Einarson, trans. 1959) (“For by nature there is no such thing as a native
land, any more than there is by nature a house or a fram or forge or surgery”); 533
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32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
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(“For nature leaves us free and untrammeled; it is we who bind ourselves, confine
ourselves, immure ourselves, herd ourselves into cramped and sordid quarters.”);
537 (“Indeed, if you lasy aside unfounded opinion and consider the truth, the man
who has a single city is a stranger and alien to all the rest”); 545-46 (“Zeno indeed,
when he learned that his only remaining ship had been engulfed with its cargo by
the sea, exclaimed: ‘Well done, Fortune! Thus to confine me to a threadbare cloak’
and a philosopher’s life”). See also Martha Nussbaum, Kant and Stoic
Cosmopolitanism, 5 J. POL. PHIL. 1 (1997), in which she explicitly addresses the
tension between Stoic cosmopolitanism’s participatory and self-alienating aspects.
Nussbaum herself has acknowledged as much. See Martha C. Nussbaum,
Compassion & Terror, DAEDALUS, Winter 2003, at 10, 22 (noting that for Marcus
Aurelius, achieving evenhanded concern for humans required the extirpation of
personal attachments, creating a world “strangely lonely and hollow”).
ABU BAKR MUHAMMAD IBN YAHYA [AVEMPACE], TADBIR AL-MUTAWAHHID
(Ma’an Ziade ed., [AU: Publisher?] 1978) ([AU: original year]). [AU: Please
confirm this source—we could not find the publisher or confirm the author name.]
For excerpts in English, see Avempace, The Governance of the Solitary, in
MEDIEVAL POLITICAL PHILOSOPHY 122 (Lawrence Berman trans., Ralph Lerner &
Muhsin Mahdi eds., 1963).
JOSEPH B. SOLOVEITCHIK, THE LONELY MAN OF FAITH (1992).
Plutarch, On the Fortune of Alexander, in For a discussion of this passage, see
Sandrine Berges, Loneliness and Belonging: Is Stoic Cosmopolitanism Still
Defensible?,
http://www.bilkent.edu.tr/~berges/Loneliness%20and%20Belonging.doc
(last
visited Aug. 29, 2006).
Kwame Anthony Appiah, Cosmopolitan Patriots, in FOR LOVE OF COUNTRY,
supra note 27, at 21.
Id. at 22.
Id. at 25
Id. at 29.
Id. at 24. Rawls gave a lecture entitled The Law of Peoples in 1993, reprinted in
.
John Rawls,
The Law of Peoples, in ON HUMAN RIGHTS: THE OXFORD AMNESTY
LECTURES 41 (Stephen Shute & Susan Hurley eds., 1993). That same year, he also
published Political Liberalism (later reissued in an enlarged edition in 1996), and
in 1999, The Law of Peoples. These works took up the challenge of considering,
according to Rawls, “how reasonable citizens and peoples might live together
peacefully in a just world.” Rawls, The Law of Peoples, at vi.
NUSSBAUM, supra note 5.
Nussbaum restricts her critique to liberal (i.e., non-Rousseauian) social contract
theories. Id. at 25. [AU: It might be helpful to drop a line here explaining what
Rousseauian or otherwise non-liberal social contract theories might look like.]
For ease of exposition, the order of the argument presented here differs slightly
from Nussbaum’s own.
Hume’s discussion may be found in Book 3.2.2 of his Treatise on Human Nature.
See DAVID HUME, A TREATISE OF HUMAN NATURE 311-22 (David Fate Norton
and Mary J. Norton eds. 2000, first published 1737-40).
See RAWLS, A THEORY OF JUSTICE, supra note xx, at 126-27, and see 126 n.3.
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46. Nussbaum, supra note xx, at at 28.
47. The severely disabled, Nussbaum says, also cannot be imagined as roughly equal
for social contract purposes. Id. at 31-32. Neither can non-human animals, who
also are not free. Id. Important as these subjects are, they are not directly relevant
to the topic of cosmopolitanism and I therefore do not address them here.
48. Id. at 32.
49. Nussbaum points out that Rawls in his later work did imagine that the social
contract ideal might be applied among peoples organized into states. Id. at 238-55.
50. NUSSBAUM, supra note 5, at 34.
51. Id. at 30 (citing HOBBES, supra note 14, at [AU: Please provide page number in
Tuck ed.; was “ch. 13”]).
52. Nussbaum at 51.
53. Id. at 25.
54. Nussbaum at 36.
55. Id.
56. Id. at 37.
57. See id. at 76-78. Nussbaum has developed the capabilities idea in earlier work.
See, e.g., MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE
CAPABILITIES APPROACH (2000).
58. NUSSBAUM, supra note 5, at 78.
59. Id. at 75.
60. Id. at 25; see also id. at 94-95 (explaining the role of contractarian theories as
.
“close allies of the capabilities approach”).
61. [AU: Please add pincite(s).]
62. See supra notes 19-25 and accompanying text.
63. NUSSBAUM, supra note 5, at 264-70.
64. Id. at 71-72.
65. For the comparison, see id. at 70, 315-16. For Sen’s work, see, for example,
AMARTYA SEN, DEVELOPMENT AS FREEDOM (1999); AMARTYA SEN, INEQUALITY
REEXAMINED (1992); and AMARTYA SEN, COMMODITIES AND CAPABILITIES
(1985).
66. NUSSBAUM, supra note 5, at 71.
67. Thus in one important essay, Nussbaum defends Cicero’s “cosmopolitan” view
that duties of justice run to all humans, while rejecting his (corresponding) view
that duties of material aid run in the first instance to one’s own fellow citizens.
Martha C. Nussbaum, Duties of Justice, Duties of Material Aid: Cicero’s
Problematic Legacy, 8 J. POL. PHIL. 176 (2000).
68. JOHN LOCKE, TWO TREATISES OF GOVERNMENT. On positive and negative liberty,
see Isaiah Berlin, Two Concepts of Liberty.
69. 397 U.S. 254 (1970).
70. Id. at 262 n.8 (citing Charles A. Reich, The New Property, 73 YALE L.J. 733
(1964)).
71. NUSSBAUM, supra note 5, at 316-18.
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72. Id. at 261. Nussbaum does not expand on this point except to insist that, unlike
Rawls, she attributes no agency to “peoples.” Id. at 262.
73. Id. at 313-14.
74. Id. at 319.
75. See Nussbaum, supra note xx, at 315 for her expression of this concern.
76. Id. at 315.
77. Id.
78. Nussbaum does acknowledge the work of Pogge and Beitz, which seeks to move
the ground of the contractarian model to the whole world, but her approach aims to
sidestep the whole apparatus. [AU: Please add FoJ cite here.]
79. Karl Marx, Economic and Philosophic Manuscripts of 1844 (Dirk J. Struik ed.,
Int’l Publishers 1964) (1844).
80. NUSSBAUM, supra note 5, at 74 (quoting Marx).
81. APPIAH, ETHICS OF IDENTITY, supra note 6.
74
82. APPIAH, COSMOPOLITANISM, supra note 6.
83. On Appiah’s debt to Mill, see, for example, APPIAH, ETHICS OF IDENTITY, supra
note 6, at 1-13, 271-72.
84. Appiah, supra note 36.
85. See supra note 36 and accompanying text.
86. Appiah, Ethics of Identity, supra note xx, at 212 (chapter heading).
87. Id. at 222.
88. APPIAH, COSMOPOLITANISM, supra note 6, at 111.
89. APPIAH, ETHICS OF IDENTITY, supra note 6, at 223.
90. See Appiah, supra note 36.
91. APPIAH, ETHICS OF IDENTITY, supra note 6, at xiii, 230 (citing RONALD DWORKIN,
SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY 485 n.1 (2000)).
The distinction is developed over several pages, see id. at 230-37, with reference
added to Hegelian Sittlichkeit and Moralitat, see id. at 233.
92. APPIAH, ETHICS OF IDENTITY, supra note 6, at 236.
93. Id. at 246.
94. Id. at 245.
95. Id. (emphasis added).
96. Id. at 246
97. For Appiah, state coercion is justified only when the state treats persons
impartially as possessing equal moral worth. See id. at 231.
98. Id. at 246.
99. Id. at 246.
100. Id. at 91.
101. Id. at 93-94.
102. Id. at 93.
103. Id.
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cosmopolitan law?
104. Id.
105. APPIAH, COSMOPOLITANISM, supra note 6, at 35.
106. Id. at 36.
107. Id. at 38.
108. Id. at 38-39.
109. Id. at 39.
110. Id. at 44.
111. APPIAH, ETHICS OF IDENTITY, supra note 6, at 92-96 (citing Thomas Nagel, Moral
Conflict and Political Legitimacy, 16 PHIL. & PUB. AFF. 215 (1987)).
112. Id. 39.
113. See, e.g., APPIAH, COSMOPOLITANISM, supra note 6, at 126-27. [AU: Do you want
to say something more in this footnote? Just the fact Appiah’s standpoint here is
“cosmopolitan” is not so remarkable or interesting given that that is his standpoint
throughout.]
114. Id. at 122-24.
115. A related yet distinct answer, focusing on “the agency or will that is inseparable
from membership in a political society, “ may be gleaned from Thomas Nagel, The
Problem of Global Justice, 33 PHIL & PUB. AFF. 113, 128 (2005). Technically,
Nagel here is not justifying legal coercion in the first place, but giving an argument
for why we are responsible to address arbitrary economic inequalities within a
given political society where coercive law already operates. In the course of so
doing, however, he describes the state of membership in terms of the observation
that we are “both putative joint authors of the coercively imposed society, and
subject to its norms.” Id. It is worth noting that Nagel downplays the element of
consent in entering political society – he consider the act of membership accidental
-- while emphasizing the element of agency (and by implication, consent) that
comes from participating in political society.
116. There are quirky cases like the legal duties of foreign visitors or residents. But it
is customary (and somewhat plausible) to say that these, too have consented to be
governed by law by being there, despite the fact that they have not entered into the
political agreement that applies to citizens. See Waldron, Special Ties, supra note
xx, at 8-9.
117. Note that this view need not entail any commitment about whether law is best
understood in positivist or interpretivist terms. The agreement that is a condition of
justified legal duty according to this view is the political agreement to form or
enter the polity, not an agreement about the content of law.
118. Nagel, in The Problem of Global Justice, supra note xx, at 119-21, distinguishes
between what he calls the political conception of justice and the cosmopolitan
conception of justice. In his account, according to the political conception, justice
properly speaking is a virtue of states. The political conception of legal duty is a
little different. It makes political agreement into the condition for justified legal
duty, but it admits of the possibility that this political agreement could be between
states -- hence the legal duties of international law could be thought to arise from
the political theory of legal duty.
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119. APPIAH, ETHICS OF IDENTITY, supra note xx, at 245-46 (explaining that “once we
are speaking not within but among polities, we cannot rely upon decrees and
injunctions”).
120. See, e.g., Prosecutorial Remedies and Other Tools To End the Exploitation of
Children Today (PROTECT) Act of 2003, Pub. L. No. 108-21, 117 Stat. 650.
121. See, e.g., Pub. L. No. 109-148, Div. A, tit. X, § 1003, 119 Stat. 2680, 2739-40
(2005) (codified at 42 U.S.C.A. § 2000dd(d) (Supp. 2006)) (“No individual in the
custody or under the physical control of the United States Government, regardless
of nationality or physical location, shall be subject to cruel, inhuman, or degrading
treatment or punishment.”). This law enacts the McCain Amendment to the Fiscal
Year 2006 Defense Appropriations Bill.
122. E.g., Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465
U.N.T.S. 85.
123. One would think it obvious that this obligation would apply everywhere. But
astonishingly, the U.S. Government has sometimes suggested otherwise. Article 2,
section 1 of the Convention states that “[e]ach State Party shall take effective
legislative, administrative, judicial or other measures to prevent acts of torture in
any territory under its jurisdiction.” The government has occasionally claimed that
this language means the Convnetion does not apply to its action outside “its
jurisdiction,” i.e. the United States. This seems to me an obvious and pernicious
misreading. See also article 5.
124. The complex and important question of customary international law is beyond the
scope of this essay. For our purposes it should suffice to note that just as the
political conception of legal duty entails no commitment to one or another theory
of the nature of domestic law, it also entails no necessary commitment to any
theory about the nature or sources of international law. Customary international
law could be understood as binding because state parties have actually or
hypothetically consented to be bound by its norms by their entrance into the world
community. Alvarez-Machain v. United States, 331 F.3d 604, 613 (9th Cir. 2003)
(en banc), cert. granted sub nom Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
125. Military Commissions Act of 2006.
126. Thus if Congress passed a law applying more broadly, the authors of the
Restatement would presumably consider the law unwise and unjustified but not
invalid or unconstitutional.
127. See 18 U.S.C. § 2332(a)-(b) (2000) (criminalizing murder and conspiracy to
murder a U.S. national outside the United States).
128. Though it remains unclear why this self-protective motive justifies the imposition
of duties on others.
129. “The district courts shall have original jurisdiction of any civil action by an alien
for a tort only, committed in violation of the law of nations or a treaty of the
United States.” 28 U.S.C. § 1350 (2000).
130. 49 U.S.C. app. § 1472 (n)(1). On the history of this law and on extraterritorial
enforcement more broadly, see Andreas F. Lowenfeld, U.S. Law Enforcement
Abroad: The Constitution and International Law, 83 AM. J. INT’L LAW 880 (1989).
131. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §
404.
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cosmopolitan law?
132. Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945).
133. This is the so-called Ker-Frisbie rule. See Ker v. Iillinois, 119 u.S. 436 (1886);
Frisbie v. Collins, 342 U.S. 519 (1952). On the rule see Andreas F. Lowenfeld,
U.S. Law Enforcement Abroad: The Constitution and International Law,
Continued, 84 AM. J. INT’L LAW 444, 460-67 (1990).
134. For example, Manuel Noriega.
135. Retroactive civil liability has often been found not to violate the Ex Post Facto
Clause or due process. See
136. Meditations Bk 3. (Cite to Loeb edition)
137. Cf. CARL SCHMITT, THE CONCEPT OF THE POLITICAL (George Schwab trans.,
Univ. of Chicago Press, 1996) (1932). [AU: Please add at least a parenthetical
explaining your reference to Schmitt here, perhaps emphasizing the friend/foe
distinction. A pincite might also help.]
.
138. See ANONYMOUS, 1 HISTORIA AUGUSTA
*157-63 (David Magie trans., Loeb
Classical Library 1921). [AU: We could not find this source. Can you please
confirm and give us any more information you might have on it?
139. MEDITATIONS, supra note Error! Bookmark not defined., at [AU: Need to add
pincite info (section/chapter/page) here.] (describing “the natural law of
fellowship with benevolence and justice”); id. at [AU: Also need to do the same
here.] (“For there is one universe made up of all things, and one God who
pervades all things, and one substance, and one law, one common reason in all
intelligent animals, and one truth.”).
140. See, e.g., Casey; Lawrence v. Texas (grounding the due process right to be free of
prohibitions on consensual same-sex sexual conduct in the an account of human
functioning).
141. Martin Luther King, Jr., Letter from a Birmingham Jail (Apr. 16, 1963),
http://www.nobelprizes.com/nobel/peace/MLK-jail.html.
142. RAWLS, A THEORY OF JUSTICE, supra note xx, at 115.
143. Waldron, Special Ties, supra note xx, at 3
144. Id. At 19.
145. Id. At 13,
146. Id. At 20.
147. See HUME, supra note xx, at xx.
148. Waldron, Special Ties, supra note xx, at 23.
149. I have in mind substantive requirements, not the procedural requirements
described by Jeremy Waldron in his draft paper on the rule of law.
150. An example of what Liam Murphy calls non-monism in analysis, differentiating
an institutional morality from a personal one.
151. Something like this argument may perhaps be gleaned from some of the speeches
of the Lords in the Pinochet case. [give cites]
152. The Ker-Frisbie rule, see supra, note xx.
153. See supra note 129 and accompanying text. [AU: It would be helpful to cite to
something explaining the ATCA and how it’s been interpreted and applied.]
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154. International space law lies for the moment outside the bounds of this Review .
the doctrine of res communis, a communal owenership of space, leaves open the
question of what law to apply, but it aleast hints that even off the earth, some law
should apply. For now question of detention in space is a matter for the science
fiction fantasist – but as the last century has taught us, the speculative has a way of
becoming real.
155. Rome statute
156. See Rasul v. Bush, 542 U.S. 466, 480-81 (2004).
157. But see Regina (Bancoult) v. Sec. of State, [2001] Q.B. 1067 (U.K.). (holding that
persons expelled from diego Garcia by the Crown were entitled to redress as
“belongers” to territory under the Queen’s jurisdiction). Bancoult was decided on
facts that applied before ht U.S. leased the island.
158. See, e.g., Dana Priest & Scott Higham, At Guantanamo, a Prison Within a Prison:
CIA Has Run a Secret Facility for Some Al Qaeda Detainees, Officials Say,
WASH. POST, Dec. 17, 2004, at A1.
159. Eisentrager
160. See Rasul
161. Id. at xx. It was not necessary for the Court to decide whether, in the absence of a
statute, the Constitution would have applied in Guantánamo -- but with Congress’s
subsequent enactments that restrict the statutory reach of habeas to detainees held
outside the United States, it may still be necessary for the Court to reach this issue
in afurther case.
162. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2794-96 (2006). See also
Memorandum from Jay S. Bybee, Assistant Att’y Gen., to Alberto R. Gonzales,
Counsel to the President, and William J. Haynes II, General Counsel, Dep’t of
Defense (Jan. 22, 2002), available at http://www.washingtonpost.com/wpsrv/nation/documents/012202bybee.pdf]
163. Hamdan, 126 S. Ct. at 2796-97. [AU: Is this the pincite you would want to use?
Also, do you want to note here something about how the Court said Common
Article III covers these detainees not as a matter of constitutional law, customary
international law, or natural law, but because it read the UCMJ as incorporating
the Geneva Conventions and the Geneva Conventions as applying CA3 to these
individuals? While Hamdan was a very broad opinion in some respects, this
particular piece of interpretive restraint (judicial minimalism) blunted somewhat
the moral/ethical and international-law implications of the decision (cosmopolitan
minimalism).]
164. See supra, TAN xx-xx. [AU: I am not sure what you are trying to cite here. The
discussion on Stoic cosmopolitanism? Nussbaum’s early efforts to downplay the
subversive/radical elements of classical cosmopolitanism?]
165. See DIOGENES LAERTIUS, supra note 8, at 75 (Bk. Vi.72).
166. Id.
142